Facts: Cops surveilling a suspected stash
house saw a man enter, then leave with a large white box. Id. at *1. The man drove away, parked, and gave the box to
Cervantes. Id. Cervantes drove on a
freeway, and then through a residential neighborhood. Id. Cops thought this was “counter-surveillance” creating probable
cause, but didn’t stop Cervantes. Id.

Cervantes
then stopped at a residence and puttered about; three hours later he drove away.
Id. Cops find a reason for a traffic
stop, arrest Cervantes for driving without a license (he had one), and find two
kilos of cocaine in the box after an impound search. Id. at *2.

The district court upheld the search using, among other
theories, the “community caretaking” function. Id.

Issue(s): “[T]he government contends that
the officers had probable cause to search Cervantes's vehicle based on (1) [the
officer’s] conclusory statement that the box in Cervantes's possession came
from a ‘suspected narcotics stash house,’ and (2) [the officer’s] observation
that Cervantes ‘did not take a direct route to his location.’” Id.

Held: “The
government asks us to place heavy reliance on [the officer’s] conclusory
statement that, based on [his] training and experience, the white box in Cervantes's
possession came from a ‘suspected narcotics stash house.’ But in the absence of
any underlying facts as to why [the officer] suspected the house was a ‘stash
house,’ this statement is entitled to little, if any, weight in the probable
cause analysis.” Id. “While [the
officer’s] training and experience are factors to be considered, it is
incumbent upon the arresting or searching officer to explain the nature of his
expertise or experience and how it bears upon the facts which prompted the
officer to arrest or search. Conclusory statements and a general claim of
expertise will not suffice.” Id. at
*3 (internal quotations and citation omitted).

“The government also urges us to
rely on [the officer’s] observation that Cervantes ‘“did not take a direct
route to his location.” Cervantes's unremarkable driving practices, however,
fall short of any indicia of criminal activity.” Id. at *3. “[The officer’s] observations regarding Cervantes's benign
travel tactics, when coupled with [the officer’s] conclusory statement about
the box in Cervantes's possession, are insufficient to establish probable
cause. . . . This is only reinforced by [the officer’s request that [other
officers] develop a lawful reason to stop Cervantes. Had probable cause existed
to stop Cervantes, there would have been no need to develop an independent
reason to pull Cervantes over.” Id.
at *4.

Of Note: This is a good decision on probable cause for
an auto search. It is a great
decision, however, on the much-abused “community caretaking” exception. Id. at *4. In a compelling analysis, Judge
Pregerson explains that the community caretaking exception cannot be a “ruse
for general rummaging in order to discover incriminating evidence.” Id. The opinion surveys Ninth authority
on the “community caretaking” concept, questions whether the cops in Cervantes even complied
with the vehicle code, id. at *6, and
ultimately rejects the community caretaking exception because -- in part -- the impoundment and search
was a “pretext to search for narcotics.” Id.

Cervantes is now the lead “community
caretaking” opinion: very much worth a close read.

How to
Use: Read Cervantes, think Whren. In
Whren, the Supremes endorsed that
hated “pretext” concept – OK to use traffic stops as a pretext for what is
really a Fourth Amendment search. 517 U.S. 806 (1996).

In Cervantes, the Ninth weighs the cops’ pretextual stop against the
government, in the context of both the probable cause analysis, id. at *4, and in the community
caretaking analysis, id. at *6. Take
a good look at Cervantes’ handling of
Whren when wrestling with a pretext
traffic search.

For
Further Reading: Whren
makes for bad searches, protects bad cops, and makes for bad police-community
relations. So correctly observes D.C. District Judge James Robertson, in a
compelling little summary of what’s wrong with Whren. See “How Whren
Protects Pretext,” available here.